There is no evidence of sewage at plaintiff's mill, visible or indicated by odor, but defendant elicited from Dr. Pacini, plaintiff's expert, an answer tending to show that in a cold flowing stream the life of the colon baccilli would be continued for many hours and for a long distance, and it may be assumed, from the neglect. to pursue the subject, that both parties were convinced that the pollution at defendant's mill would persist to plaintiff's mill. The plaintiff's employés do not drink the water of the stream, but they come in contact with it. Nor does it appear that the water, polluted by sewage, used in the preparation of plaintiff's paper stock, is thereby injured, or that any actual monetary damage has ensued. For such reason defendant urges that plaintiff cannot enjoin the pollution. In its naked form the proposition is that in the absence of evidence of disease or death, or monetary loss from the presence of sewage, precipitated in a stream by an upper riparian owner, a lower owner on the stream has no remedy; that is, sewage conveying death is irremediable, if an owner of property abstains from exercising his right to use it, or, in using, cannot prove noxious effects. Thereby defendant contends for immunity in sowing the germs of typhus pending its actual and recognized arrival. Persistent infringement of a right is not restrainable until it has wrought harm; let men sicken, and it may be die, before the court will prevent the cause; that is defendant's position. [1] I find no warrant for such attitude in reason or authority. The asserted rule of perceptible, actual damage as a condition of restraint of a wrong was condemned in Webb v. Portland Manufacturing Co., 3 Sumn. 189, Fed. Cas. No. 17,322, and this court has consistently followed the principles there stated. Townsend v. Bell, 62 Hun, 306, 17 N. Y. Supp. 210; Id., 70 Hun, 557, 24 N. Y. Supp. 193; Id., 42 App. Div. 409, 59 N. Y. Supp. 203. In that case the Court of Appeals (167 N. Y. 462, 60 N. E. 757) reversed the last decision of this court upon the ground that the jury had found that the defendant's use of the water was reasonable. Such a finding, if supported by evidence, settles controversies between riparian owners. There the use of the water was essential to a legitimate industry and found to be harmless, but the deposit of the fecal matter in the case at bar, while convenient, is not indispensable. In Gilzinger v. Saugerties Water Co., 66 Hun, 173, 175, 21 N. Y. Supp. 121, 122, it is said:

"If no injury did or could result to the plaintiff by this diversion, then he had no cause for complaint.”

In Smith v. City of Rochester, 38 Hun, 612, affirmed 104 N. Y. 674, Justice Haight in a dissenting opinion was contented with Webb v. Portland Manufacturing Co., supra, with the modification that wrong must be such that the plaintiff be actually injured or "may be injured" by it, or, as restated, it must appear that he has been damaged, or "that there is reason to apprehend that he may be injured." If either statement be adopted, the defendant is in legal fault, inasmuch as the pollution is so potential for harm that injury could result, and there is reason to apprehend it if the water be used for drinking purposes or may otherwise reach the intestinal tract. If an owner

be extinguished by prescription the use is innocent and reasonable. But otherwise there is a wrong that may be enjoined without proof of past or present actual harm. The last-mentioned cases in this state so decide, as do Mann v. Willey, 51 App. Div. 169, 64 N. Y. Supp. 589, affirmed 168 N. Y. 664, 61 N. E. 1131; N. Y. Rubber Co. v. Rothery, 132 N. Y. 293, 296, 30 N. E. 841, 28 Am. St. Rep. 575; Amsterdam Knitting Co. v. Dean, 13 App. Div. 42, 43 N. Y. Supp. 29, affirmed 162 N. Y. 278, 56 N. E. 757; Duesler v. City of Johnstown, 24 App. Div. 608, 48 N. Y. Supp. 683. The subject may be pursued with profit by consulting the opinion of Justice Laughlin in Western N. Y. Water Co. v. City of Niagara Falls, 91 Misc. Rep. 73, 154 N. Y. Supp. 1046.

[2, 3] The above decisions dispose of the defendant's proposition that the water is unfit from pollution before it reaches its mill, and that its increase of the pollution would be restrained without benefit to the plaintiff. The plaintiff has failed to show that the defendant by depositing the spent dyes in the stream makes an unreasonable use of it. The plaintiff produced evidence tending to show some discoloration of the water at its mill before it passed its filter. But it is a conclusive fact that after the water passes the filter it has an appearance undistinguishable from the pure spring water for which plaintiff has made provision. What becomes of the coloring matter in the course of such progress? It is conceded that the aniline dyes, of which plaintiff complains as hurtful to its stock in manufacture, cannot be removed by filtration. There is reason to conclude that plaintiff is mistaken in the accusation that the dyes are harmful, or even appreciably present, at its mill. The learned chemical expert for the plaintiff testified that the acid in the aniline dyes used and sent into the stream by defendant discharges the ultramarine blue used by plaintiff to give proper coloring tone to its paper; but it appears from the testimony of Prof. Matthews, at least an equally informed chemist, that the aniline dyes used are not acid dyes, although called such from the acid baths in which they are prepared, and that the water taken from defendant's tail race will not discharge ultramarine blue, and experiments. in court so establish. Moreover, the court was informed by actual analysis that the water in the stream is not acid, but alkaline, and that, if the spent dies were acid, they would be neutralized by the water. It also appears that the plaintiff's chemist in his analysis used capryl alcohol, and the court was advised by other evidence that such alcohol itself had an element that would discharge ultramarine blue, thus illustrating how error may creep into investigation, and how opposite results obtained by men of technical knowledge may be composed.

But there is another way of reaching demonstration of plaintiff's error. The defendant showed by the chemist Green, whose competency clearly appears, that upon analysis the water showed no acidity, but alkalinity, and that samples of water taken above and below defendant's mill show practically the same contents. It appears, also, that the skeins of yarn in defendant's mill are colored with the dyes mixed in paste, the color fixed by steaming, and that they are carried in layers of sawdust to tubs and rinsed in water emptied in the stream. The water in

the tub so affected by the washing does not stain the operator's hands, white cloth immersed in it, or the white yarn that is mingled with the colored yarn. Water is used to wash the oilcloth that covers the drums in which the dyes are applied, and the plaintiff's president took a sample of such washing and produced it in court, where the defendant dipped white woolen cloth into it without resulting discoloration. It is beyond reason, then, to suggest that the same material, carried 8,000 feet in the running stream, the water of which, after passing the filter, has no appearance indicating unnatural color, discolors plaintiff's paper stock. So, whether the view of the chemist or the view of the layman be considered, there is no just inference that the dyes affect the plaintiff's product.

[4] The plaintiff complains of microscopic fibers that clog the filters, and ascribes them to the washing of defendant's wool. However, the reach of the stream and its varied exposure to substances renders plaintiff's conclusion as to their origin mere speculation, nor is it unreasonable that the defendant should wash the wool used in the water of the stream, nor is it at all probable that there would be such percentage of waste as to clog filters some 111⁄2 miles down the stream. If it be so, the defendant's self-interest would demand correction. It does not appear that the defendant's use of the water has been such in continuity and degree as to gain it the right by prescription either to pollute or to discolor the stream, or otherwise to affect it with impurities. It is decided that the defendant has not used the waters of the stream for a sufficient time to gain rights by prescription; that the plaintiff may receive special and particular damage apart from the rights of the public by the discharge by the defendant of sewage into the creek, and that the use of the stream by the defendant in respect to such sewage is unreasonable and improper; that the defendant does not otherwise invade plaintiff's rights or injure its property; and that the plaintiff does not by discharge of waste and sewage into the stream contribute to the pollution in a substantial degree.

The findings and judgment should be amended in accordance with this opinion, and, as so amended, affirmed, without costs. Settle order. All concur.

(104 Misc. Rep. 223)

PEOPLE ex rel. OAKLAWN CORPORATION V. DONEGAN,

County Register.

(Supreme Court, Special Term, New York County. July, 1918.)

In view of General Construction Law, § 35, and Real Property Law, § 318, a deed of conveyance acknowledged by three of the four grantors is not entitled to record, under Real Property Law, § 291, providing for record where the conveyance is duly acknowledged by the person executing the same.

Application for writ of mandamus by the People, on the relation of the Oaklawn Corporation, against James A. Donegan, Register of the County of New York. Application denied.

Order affirmed, App. Div., 172 N. Y. Supp. 448.
Harold Swain, of New York City, for relator.

Wm. P. Burr, Corp. Counsel, of New York City, for respondent.

GUY, J. Application for mandamus directing the register of New York county to receive and record in his office as a deed of real property a certain deed executed by four persons of property situate in his county. The execution of the instrument was duly and sufficiently acknowledged by three of the four grantors; but the acknowledgment of the remaining grantor, Christine Hoguet, purports to have been taken by a notary public in Berkshire county, Mass., and there is no authentication of the authority of the notary to take the acknowledg

ment.

Section 291 of the Real Property Law (Consol. Laws, c. 50) provides that a conveyance of real property within the state, "on being duly acknowledged by the person executing the same, or proved as required by this chapter, and such acknowledgment or proof duly certified when required by this chapter," may be recorded. The relator claims that, as the deed was duly acknowledged by three of the grantors, it was the duty of the recording officer to record the instrument, irrespective of the fact whether the other grantor, Christine Hoguet, made due acknowledgment of the conveyance or not. It seems to me. however, that the statute requires as a prerequisite to record due acknowledgment of the instrument by all the persons executing the same. Under the original statute (1 R. S. p. 756, § 4), "to entitle any conveyance hereafter made to be recorded by any county clerk, it shall be acknowledged by the party or parties executing the same," and there appears no reason why, under section 35 of the General Construction Law (Consol. Laws, c. 22) the word "person," in the singular number, does not include "persons." The instrument could not be properly recorded without recording the certificates thereon (Real Property Law, § 318), and the relator cannot be aggrieved on the theory that as a conveyance from the grantors whose execution is duly acknowledged the paper was refused record, for the officer is willing to record the instrument with the name and signature and acknowledgment of Christine Hoguet erased therefrom.

Motion denied, with $10 costs.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(104 Misc. Rep. 224)

PEOPLE ex rel. SPRENGER v. DEPARTMENT OF HEALTH.

(Supreme Court, Special Term, New York County. July, 1918.)

1. MANDAMUS 81-MUNICIPAL CORPORATIONS 601-SITE FOR SANATORIUM-APPROVAL BY BOARD OF HEALTH.

Where refusal of board of health of a city to approve as a site for a sanatorium property in a residential neighborhood is based on its effect on values of adjoining real estate, mandamus to compel approval will be granted.

2. HEALTH 6-BOARD OF HEALTH-POWERS.

Greater New York Charter, § 1172, providing that board of health, whose jurisdiction is confined to matters of public health, may embrace in Sanitary Code all matters to which the authority of the board extends, "not limiting their application to the subject of health only," limits the jurisdiction to matters dealing directly or indirectly with the public health and life.

Application by the People, on the relation of William A. Sprenger, for writ of mandamus to the Department of Health. Writ granted.

John J. Haggerty, of Brooklyn (Ralph K. Jacobs, of Brooklyn, of counsel), for relator.

William P. Burr and William Keogh, both of New York City, for respondent.

OTTINGER, J. Sprenger, the relator, applies for a writ of mandamus to compel the board of health to approve, as a site for a sanatorium, property owned by him in a residential neighborhood. Defendant's regulations relative to sanatoria provide for the approval of the structure by the building and fire departments, and then require "the sanitary condition thereof and the location of the building to be approved by the department of health." The plans have been approved by the fire and building departments. The respondent admits that the location is, from a sanitary standpoint, unobjectionable, and that, together with the plans, the contemplated structure is in every respect satisfactory. But, acting upon the report of the former comptroller, it has refused its approval upon the sole ground that, if placed in this residential locality, the building would materially injure the values of adjoining real estate, and the owners of other property in the vicinity make urgent protest for that reason. It is not pretended that the sanatorium is to be used for infectious. diseases, or that it could in any wise affect the health of neighbors. So that the refusal is based solely upon the effect of the proposed structure on values.

[1, 2] The single inquiry upon this application is whether the matter of values is one which the respondent may consider; for, if it be, the courts cannot interfere with action thereon, except upon proof of a clear abuse of discretion. In this instance, the determination was made only after a full hearing of real estate experts on both sides. Section 1172 of the Greater New York Charter (Laws 1901, c. 466) provides that: